The Top Ten Rules For Staying Out Of Court.

A friend of my late father used to say “there are three places you avoid going: Phillip Island in winter, VFL Park in winter and to court”. While I admit to spending more than my fair share of Saturday afternoons at frigid, wind-swept (now defunct) VFL Park in suburban Melbourne, I now spend a great deal of my life in and around court rooms. As for Phillip Island, I’m prepared to heed the advice of my father’s friend and stay away.

While it may be in my economic and financial interests to encourage as many people as possible to go to court, to be honest I would have to say it is a good place to steer clear of unless you have no real alternatives.

So what should security officers do to stop themselves ending up in court? What steps should security personnel take in order to stay out of legal hot water? Here’s a brief guide. The top ten legal things security officers should be aware of while performing their day-to-day duties.

The first rule is to do everything possible to avoid being charged with assault. Whether you like it not, putting on a security uniform does not give you the right to act in a manner different to the rest of the community. You are not a sworn police officer so don’t act like you are. In fact, you have the responsibility to exercise a greater degree of care in dealing with the public than most because you are often coming into contact with people when they are at their most vulnerable. Giving a trouble-making bar patron a whack across the head might give him the message that it’s time for him to go home (and it might make you feel good) but it’s assault – pure and simple. If you can’t get away with it on the street, don’t think that you can get away with it inside a licensed establishment.

If you must eject an inebriated patron from your premise then do so with care. Do not see how far you can throw him. Do not open the front door with his head. Do not ‘teach him a lesson’ in the darkened alleyway at the rear of the establishment. Remove him safely and quietly from the premise and advise him not to return. Do it in a place where other people are present and CCTV cameras are present so that you will have plenty of witnesses to back you up in the event that he claims you have assaulted him.

Similarly, if you need to detain someone after you find them breaking into a premise that you patrol, use no more than such force as is reasonably necessary to apprehend and detain them. Once they are detained, hand them quickly over to police and record in writing the circumstances leading up to the arrest. Again, do not give the offender ‘one to go on with’. Simply detain them and hand them over.

The second rule is to make an arrest only where it is absolutely clear to you that it is the best thing to do and that the person that you are arresting has in fact committed a crime.

The first part can be a bit tricky. If during your patrols you witness a person running out of the wide open front door of an electronics retailer with a DVD player under his arm, you will need to assess whether it is better to chase the offender and arrest him, or whether it would be better to secure the premise so that no other items are removed from it in your absence. Almost certainly, your client (the retailer) would want you to devote your energies to securing the shop and the stock rather than exposing the shop to further theft by chasing the purported offender.

If you are able to make an arrest without leading to further losses by your client then you should do so if the evidence warrants it. Ensure that you have reasonable grounds for your conclusion that the person has committed an offence. If you do not, then you should let them walk (or run) away. If you do, then make the arrest quickly and call the police immediately.

The third rule is to not act like a target. Some people see security uniforms as an invitation to behave irrationally. Because security personnel are not members of the police force, they are not afforded the respect that (generally) police receive. In fact, some people see security personnel as fair game and an object of derision. The worst thing that security officers can do in response to such behaviour is to bite back. If a security officer is disrespected – so what? Unless that disrespect manifests itself in physical aggression or assault, let it go. Of course, if physical aggression does eventuate then you are within your rights to apprehend that person and pass them on to police. However, you should not do anything to invite or encourage it. There is an old saying: “Mugs are for drinking out of – not for falling into.”

The fourth rule is that if despite your very best efforts you are arrested, say nothing. Go to the police station and call your lawyer. More findings of guilt are made against people from the words that come out of their own mouths than as a result of evidence painstakingly garnered by investigating police officers. The right to silence is not only golden, for you it is mandatory. Do not give ‘your version’ of events. Do not answer the nice police officer’s questions so that he can ‘clear the air and get it all wrapped up’. If you are arrested then you are in enemy territory.
The best thing that you can do is to act like it.

The fifth rule is to keep to an absolute minimum the time that you are alone with an offender. If you have detained or arrested someone then you need to get out of a one-on-one situation as quickly as you can. Bring in another security colleague. If this can’t be done quickly then move immediately to an area where you know that closed circuit television cameras are in operation and remain there until assistance arrives.

Once you have made your arrest, call police and wait. Do not do anything that can give the offender ammunition to make an allegation against you. If you are alone with him, he can make up any story about how you mistreated him or about how you offered to let him go in exchange for a cash payment, or that you bounced his head off the concrete wall when he would not cave in to your demands that he admit to the crime. Such things are easy for offenders to say, and can be extremely difficult for security officers to dismiss, especially if there are no other witnesses present.

Rule number six is to preserve property. Your role may be to guard physical assets and to keep them secure. If they are at risk then you should take steps to reduce or remove that risk. You do not want to do anything that can expose you to criticism for not doing the job you have been assigned. Even if it appears that there are more pressing matters elsewhere, you should always be conscious of making sure that nothing adverse can happen to the premises that you are protecting at that time. If that means allowing an offender to abscond from premises that he appears to have broken into then so be it. Your first priority is to those premises. If you allow them to remain unsecured then the owner of them is likely (and quite rightly) to argue that you have not met your responsibility to them, and to him.

The seventh rule is that you should abide by whatever lawful directions are given to you by police officers. If you are asked by a police officer to secure the scene of a crime while he waits for backup to arrive then you should do that. If you are asked by a police officer to give information about what you witnessed at the scene then you should do that. You are a conduit between the police and your client. As referred to above, you are engaged by your client to protect property. Everything else is secondary. If the best way for you to assist police is to be interviewed by them or to secure the scene or to stay out of their way then you should do those things. Security personnel have, in the past, been charged with hindering police. You should ensure that you are not one of those people.

Rule number eight – act within the confines of your brief. If you are engaged to search people’s bags as they enter a sporting event or concert then do that. Do not make it harder than it should be. Do not remove items from attendees’ bags that look interesting. You might be curious to see what songs that girl has on her iPod but that’s really none of your business. In the event that you remove it or some other non-prohibited item from her bag she can claim an invasion of privacy. If you then find drugs or other illegal substance there is every change that she will claim that you dropped it in the bag at the same time that you removed her iPod. Keep your hands out of the bag. Look but don’t touch. Stay within the confines of your brief.

The ninth rule is to keep a log of events and to complete the log as soon as possible after the event occurs. At law, notes made contemporaneously carry significant evidentiary weight. The longer the gap between the note and the event, the weaker the note is as far as evidence is concerned. Of course, the fact that you have kept the log will be better than not having kept one at all.

While keeping a log will not itself ensure that you stay out of trouble, it will assist you in proving that you acted appropriately throughout the situation particularly if civil and/or criminal proceedings eventuate at some later point.

The tenth rule is to exercise common sense. One of the problems that lawyers find when we retrospectively dissect events is that people often lose sight of what they were actually engaged to do. It sounds trite, but circumstances often escalate because people get carried away with the situation and fail to exercise common sense. While Mark Twain was right when he said “the thing about common sense it that it’s not all that common”, many situations can be resolved in a reasonably satisfactory manner and without recourse to the courts with the exercise of a little common sense. Try it. More often than not, it actually works.

Justin Lawrence is a partner with Henderson & Ball Solicitors, 17 Cotham Road, Kew, Victoria, and practises in the areas of Commercial Litigation, Criminal, Family and Property Law. Henderson & Ball has Law Institute of Victoria accredited specialists in the areas of Business Law, Property Law and Commercial Litigation. Justin Lawrence and Henderson & Ball can be contacted on 03 9261 8000.